Turaki V. The State (1994)

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OKEZIE, J.C.A. 

The appellant was arraigned before the Bauchi State High Court on a one count charge with the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code. The victim of the charge was one Joshua Iwule. At the end of the trial, the learned trial Judge in his judgment found the appellant not guilty of culpable homicide punishable with death and accordingly acquitted him.

But the court in exercise of its powers under Section 217 of the Criminal Procedure Code convicted the appellant for a lesser offence of culpable homicide not punishable with death under Section 220(c) of the Penal Code, namely “doing a rash or negligent act” and sentenced him to five years imprisonment with effect from 7/9/88.

The three grounds of appeal filed by the appellants are as follows:

1. The decision of the trial court is against the evidence.
2. The trial court misdirected itself when it held: “It is clear from the evidence before me that accused was probably driven by sheer bravado, or power show not intending to/anyone, let alone the deceased when let (sic) go the fatal shot on 7/9/88, but he in my view was clearly rash” when the evidence before the court does not support in anyway the court’s conclusion.

Particulars of Misdirection

(a) The court ought to have decided from the facts whether the act was in the circumstances unlawful before consideration of the state of mind of the accused when he fired the fatal (sic).

(b) The entire evidence was to the effect the vehicle in which the deceased was had created a situation where there was apprehension in the mind of the accused and others as to the safety of the money being conveyed.

(c) Evidence is at one as to the reason for shooting into the air to scare away truck.

(d) The accused was not stated to be performing an unlawful act but acting in the course of duty to protect the money and to allow not a break in the convoy in which he was commanding.

3. The lower court erred in law in not considering the defence of accident pursuant to Section 48 of the Penal Code and this failure occasioned a miscarriage of justice.

Particulars of Error

(a) The trial court was duty bound to consider all defences that from the evidence may be raised in favour of the accused.

(b) The accused was performing a lawful duty; the circumstances of each case necessitated his conduct; the act committed was not intentional and the act is not so probable that a person of ordinary prudence ought under the circumstances of which it is done, to take reasonable precaution against it.

(c) There is sufficient evidence on record to raise and consider suo motu the defence of accidental killing in the execution of a lawful act.

The appellant formulated only one issue for determination, which I set out hereunder.